U.S. v. Suerte

• Citation: 291 F.3d 366
• Decision Date: 14 May 2002
• Docket Number: No. 01-20626.,01-20626.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Nestor SUERTE, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

291 F.3d 366

UNITED STATES of America, Plaintiff-Appellant, v. Nestor SUERTE, Defendant-Appellee.

No. 01-20626.

United States Court of Appeals, Fifth Circuit.

May 14, 2002.

Steven N. Siegel, Teresa Ann Wallbaum (argued), U.S. Dept. of Justice, Narcotics & Dangerous Drug Section, Washington, DC, for Plaintiff-Appellant.

Mitchell B. Lansden (argued), Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before DUHÉ, BARKSDALE and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue is whether, for extraterritorial application of the Maritime Drug Law Enforcement Act, 46 U.S.C.App. § 1901 et seq., the Fifth Amendment's Due Process Clause requires a nexus between a foreign citizen and the United States, where the flag nation for his vessel "has consented or waived objection to the enforcement of United States law by the United States". Id. § 1903(c)(1)(C). Requiring such a nexus, the district court dismissed the indictment for lack of jurisdiction. VACATED and REMANDED.

I.

Defendant Nestor Suerte, a Philippine national and resident of Colombia, has apparently never entered the United States. The Government alleges the following.

Suerte was captain of a freighter registered in Malta and owned by a member of a Colombian/Venezuelan drug trafficking organization (DTO); he met in Venezuela with DTO members in July and August 2000 to coordinate loading the freighter, off the northern coast of Venezuela, with 4900 kilograms of cocaine for transport to, and distribution in, Europe; the freighter apparently departed Venezuela on 11 August; the next day, an attempt was made, using speed boats, to transport the cocaine to it; after Venezuelan law enforcement detected the boats, they took evasive action; as a result, approximately 2700 kilograms of the cocaine was lost; and the remainder was stored for another attempt.

The DTO telexed Suerte plans for the second attempt, to occur at designated coordinates on 18 August; on 16 and 17 August, however, Venezuelan authorities arrested some of the DTO members, thwarting the second attempt; but, nevertheless, on 17 August, the freighter was at the vicinity of the designated rendezvous point, in international waters.

The United States requested, and received, permission from Malta (the flag nation) to board and search the freighter. (More specifically, Malta waived objection to the search, and the Coast Guard issued a Statement of No Objection to the boarding team.) A search by the Coast Guard did not find cocaine.

Approximately a week later, Malta waived objection to the enforcement of United States laws over the freighter and its crew. The Government towed the vessel to the Port of Houston, Texas; on 2 September, it was searched by United States Customs Special Agents; found in Suerte's cabin was a torn copy of the above-referenced telex giving the date, time, and coordinates for the second attempt to load cocaine; and also found was an attache case containing $3500 in $100 bills.

Suerte was arrested and indicted for conspiracy (as discussed infra) to possess, with intent to distribute, more than five kilograms of cocaine on board a vessel subject to United States jurisdiction, in violation of the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C.App. § 1903. The Act provides, in pertinent part:

(a) It is unlawful for any person ... on board a vessel subject to the jurisdiction of the United States ... to knowingly or intentionally ... possess with intent to ... distribute[] a controlled substance.

....

(c)(1) For purposes of this section, a "vessel subject to the jurisdiction of the United States" includes —

....

(C) a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States;

....

(j) Any person who attempts or conspires to commit any offense defined in this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

Id. (emphasis added).

Suerte moved to dismiss the indictment for lack of jurisdiction, claiming that, because he did not have a nexus to the United States, the Constitution does not permit the MDLEA to have extraterritorial effect over him. See United States v. Suerte, No. H-00-CR-659-1, slip op. at 3, ___ F.Supp.2d ___, ___ (S.D. Tex. 7 June 2001). Agreeing with Suerte's position, the district court reviewed international law principles of extraterritorial jurisdiction, which "represent[ed] the different types of nexuses recognized under international law, and thus, inform[ed its] analysis", id. at 5, ___ F.Supp.2d at ___; held no nexus existed between Suerte and the United States; and, accordingly, dismissed the indictment.

II.

The Government contends: the Due Process Clause does not require an individualized nexus for extraterritorial application of the MDLEA; alternatively, one exists. Normally, we would first address the Government's alternative position. This is because, as a general, prudential rule, we have a "strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration". County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

Whether the Due Process Clause requires such a nexus, however, is a much more straightforward question than whether a Philippine national and resident of Colombia, engaged in a large-scale conspiracy to traffic drugs internationally, but whose voyage is not proceeding to the United States, has a nexus with this Country. Therefore, it is appropriate to first consider the constitutional question. We review de novo the district court's holding. See, e.g., United States v. Brown, 250 F.3d 907, 913 (5th Cir.2001).

A.

In addition to the Supreme Court's not having addressed whether there is such a nexus requirement for the extraterritorial reach of the MDLEA, this issue is one of first impression for our court.

1.

To date we have published only two opinions regarding the MDLEA. See United States v. Bustos-Useche, 273 F.3d 622 (5th Cir.2001); Coumou v. United States, 107 F.3d 290 (5th Cir.), withdrawn in part and superseded in part, 114 F.3d 64 (5th Cir.1997). Neither case concerns the due process constraints vel non governing the MDLEA's extraterritorial reach.

Bustos-Useche, however, approaches resolving the issue at hand. That case involved a (presumably) Colombian defendant, aboard a Panamanian vessel bound for Portugal through international waters between Hispaniola and Puerto Rico. Based on information provided by the Greek government, the United States suspected the vessel of drug trafficking. Panama waived objection to the United States' boarding and searching the vessel. The flag-nation's consent to enforcement of United States law was given before trial but after the Government's search for, and seizure of, drugs aboard the vessel in international waters. Bustos-Useche, 273 F.3d at 624.

In addressing whether this belated consent satisfied § 1903's statutory jurisdictional requirements, we noted:

Because Panama consented to the enforcement of United States law over the [vessel] prior to ... trial, the district court had jurisdiction ... so long as the criminal statute under which [the defendant] was prosecuted meets the subject matter jurisdiction requirements of Article III of the United States Constitution and 18 U.S.C. § 3231 [(conferring original jurisdiction on district courts for "offenses against the laws of the United States")]. Section 1903(a) defines a "law of the United States" sufficiently enough to satisfy Article III and defines an "offense against the law of the United States" sufficiently enough to satisfy ... § 3231. Therefore, the district court had the authority to act on this case.

Id. at 628 n. 6. This implies that the only constitutional constraint on jurisdiction under the MDLEA is to be found in Article III, not the Due Process Clause.

2.

Of the three circuits that have addressed the issue at hand, only the Ninth Circuit has held the Due Process Clause requires a nexus.

a.

United States v. Davis, 905 F.2d 245 (9th Cir.1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991), involved a British vessel seized in international waters off California. A search of the vessel, pursuant to Great Britain's consent, discovered over 7000 pounds of marijuana. Id. at 247.

The vessel's captain, Davis, who was not a United States citizen, was prosecuted under the MDLEA and contested its extraterritorial application. Because "[t]he Congress shall have power ... [t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations" (Piracies and Felonies Clause), U.S. CONST. art. I, sec. 8, cl. 10, the Ninth Circuit first decided that the clause "authorize[s] Congress to give extraterritorial effect to the [MDLEA]". Davis, 905 F.2d at 248. The Ninth Circuit qualified this holding: "In order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States so that such application would not be arbitrary or fundamentally unfair". Id. at 248-49 (emphasis added; internal citation omitted).

Further rationale for the Ninth Circuit's nexus requirement was provided by United States v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir.1998), cert. denied, 528 U.S. 842, 120 S.Ct. 110, 145 L.Ed.2d 94 (1999).

The nexus requirement serves the same purpose as the "minimum contacts" test in personal jurisdiction. It ensures that a United States court will assert jurisdiction only over a defendant who "should reasonably anticipate being haled into court" in this country.

Id. at 1257 (quoting World-Wide Volkswagen Corp. v. Woodson, 444...